Heard v. United States

STEADMAN, Associate Judge,

concurring:

I agree entirely with Parts I and II of Judge Ruiz’s opinion and with the result in part III. However, I would rely on the first sentence of D.C.Code § 22-106 to determine the maximum sentence that may be imposed for a conviction under that provision, rather than the second sentence utilized by the majority.

In Butler v. United States, 481 A.2d 431, 449 (D.C.1984), we held that the phrase “crime punishable by death” in the first sentence of § 22-106 “is a legitimate shorthand reference to pai'ticularly serious offenses among which first-degree murder predominantly ranks.” It seems to me that by designating any particular crime as one for which a life sentence is permitted, the legislature has necessarily designated that crime as “particularly serious.” 1

The second sentence of § 22-106 can be applied by its terms only where it is possible to calculate one-half of the “maximum ... imprisonment ... to which the principal offender may be subjected,” and necessarily requires a maximum imprisonment that can be numerically expressed. If possible intermediate punishments, such as the sixty years for second-degree murder imposed in Haney v. United States, 473 A.2d 393 (D.C.1984), are used as a “maximum,” it not only distorts the procedures set forth in the second sen *1034 tence but also could result in situations where an accessory to a lesser offense could receive a longer sentence than an accessory to first-degree murder. This would be the “absurd result” that we eschewed in Butler .

It is true, of course, that the twenty-year limit set forth in the first sentence can be construed as a “cap” on any period of imprisonment that may be imposed by application of the formula in the second sentence. Indeed, if the majority’s approach is correct, I think such a construction is mandatory to avoid the “absurd result” already mentioned. To achieve this result, however, requires distortion of both sentences of § 22-106. It seems to me that a more straightforward interpretation of the “legislative intent” that we sought to effectuate in Butler is simply to treat the first sentence as applying to all offenses subject to life imprisonment, which (as was the case with the death penalty) perforce provide for no numerical maximum.

. I do not think that the fact that first-degree murder is now subject to life imprisonment without the possibility of parole under D.C.Code § 22-2404.1 is particularly meaningful. That provision was enacted in 1992, prior to which the maximum punishment had been life imprisonment under D.C.Code § 22-2404 ever since the elimination of the death penalty in 1972. Assault with intent to kill while armed has been punishable by life imprisonment since 1967. See D.C.Code § 22-3202 (1968 Supp.). Thus from 1972 until 1992, the two crimes were subject to the same maximum punishment. The recent life without parole statute, although it applies only to first-degree murder, does not constitute a legislative determination that the crime of AWIKWA is any less serious than it had been before.